Scholion I. On the Pauline Privilege

A lawful marriage between non-baptized persons, even if consummated, is dissolved in favor of the faith from the Pauline privilege (canon 1120, § 1), or in the case of the Apostle, as it is called; about this one must deal more fully.

I. Summary notion of the privilege. The privilege consists in this, that a spouse who in infidelity entered marriage with another infidel can, after receiving Baptism, if the other party persists in infidelity and departs, pass to new nuptials. By the new nuptials the prior marriage, even if it was consummated, is dissolved.

II. The existence of the privilege is clear from these words of St. Paul: "If any brother has an unbelieving wife, and she consents to dwell with him, let him not put her away. And if any faithful woman has an unbelieving husband, and he consents to dwell with her, let her not put away her husband. For the unbelieving husband is sanctified by the faithful woman, and the unbelieving woman is sanctified by the faithful husband; otherwise your children would be unclean, but now they are holy. But if the unbeliever departs, let him depart; for the brother or sister is not subject to servitude in such things; but God has called us in peace."¹

It is disputed whether the Apostle merely promulgated a privilege established by God, or instituted it by force of a special faculty granted by Christ to the Apostles.

To the former opinion, which St. Alphonsus (VI, 955) and very many authors embrace, there are favorable the Sacred Congregation of Propaganda Fide² and the Holy Office, which several times taught the origin of the privilege "granted by Christ the Lord and promulgated through the Apostle Paul."³

III. Conditions of the privilege. In order that, by force of the Pauline privilege, it may be lawful to pass to new nuptials, it is required: 1° that the marriage have been contracted between two infidels; 2° that one of the spouses be converted to the Christian religion; 3° that the other spouse persist in infidelity up to the new nuptials; 4° that the other spouse, after the Baptism of the faithful party, depart from that party physically or morally; 5° that through an interpellation the departure be established, unless the Apostolic See has declared otherwise. It is said:

1. That the marriage have been contracted between two infidels (canon 1120, § 1).⁴ Hence there is no place for the privilege: 1° if a baptized person in the Catholic Church, after obtaining a dispensation from the impediment of disparity of cult, has contracted with an infidel (canon 1120, § 2); 2° if a baptized non-Catholic has contracted nuptials with an infidel; and this holds even if the said non-Catholic is converted to the Catholic Church (cf. canon 1120, § 1). Some indeed judge that a baptized non-Catholic who embraces the Catholic religion can enjoy the privilege, because he is truly converted.⁵ But this seems to have to be denied, because conversion has always been understood of Baptism.⁶

Objection 1. Canon 1120, § 2 declares: "This privilege does not obtain in marriage entered between a baptized party and a non-baptized party with a dispensation from the impediment of disparity of cult." Therefore it obtains in a marriage entered between a baptized party and a non-baptized party without a dispensation from the impediment of disparity of cult, as if a schismatic or heretical party contracts with a non-baptized party.

Response. From the fact that the former does not obtain, it is not necessarily deduced that the latter obtains; that this in fact cannot be deduced follows from those things by which it is proved that it is required that the marriage have been contracted between two infidels, that is, from Sacred Scripture,⁷ from the responses of the Holy Office,⁸ and from the obvious sense of canon 1120, § 1.

Objection 2. The Church has in fact dispensed in a marriage between a non-baptized party and a party baptized in schism or in heresy.

Response. Let that pass; for the question is not about a dispensation granted by the Church, but about the Pauline privilege.

2. That one of the spouses be converted to the Christian religion, that is, be baptized, and this either in the Catholic Church or in some Christian sect. It is said:

a) Be baptized; hence even catechumens before Baptism cannot enjoy the privilege.⁹

b) Either in the Catholic Church or in some Christian sect. A few deny this and judge that it is required that the infidel spouse be converted to the Catholic faith; and they rely both on the words of Paul "brother," "sister," "faithful," and on chapter 6 De divortiis, where it is said: If the other "is converted to the Catholic faith." But Tradition teaches that the foundation of the privilege is the sacrament of faith, or Baptism.¹⁰ If the Baptism of the converted party is doubtful, for the most part the difficulty is removed by repeating Baptism conditionally; for in the case of doubtful Baptism there can be no place for the Pauline privilege.¹¹ If a doubt about Baptism or its validity arises after the new marriage has been contracted, recourse should be had to the Holy Office.

3. That the other spouse persist in infidelity up to the new nuptials, that is, not be baptized. As soon as the other spouse also is baptized, the new marriage can no longer be entered.¹²

4. That the other spouse, after the Baptism of the faithful party, depart from that party physically or morally. Therefore it does not suffice that the infidel party not be baptized, but departure is also required; and indeed departure after the Baptism of the faithful party; departure before Baptism does not suffice. Moreover, both physical and moral departure suffices.

a) One departs physically: 1° who for any cause whatever is unwilling to cohabit. This departure, however, does not suffice if the faithful party, after receiving Baptism, has furnished to the infidel party a just cause of departing (canon 1123).¹³ I said after Baptism, because Baptism washes away all past things. One departs physically: 2° who indeed wishes to cohabit, but is physically impeded from it, provided he is not impeded because of a cause placed by the faithful party after Baptism. The case is present, for example, if the infidel party is detained in prison and there is no hope that he will soon be freed. This is denied by some, who require a malicious departure; but the response of the Holy Office is opposed to this opinion.¹⁴

b) One departs morally: 1° who is unwilling to cohabit without insult to the Creator, for example if the infidel party inflicts a formal injury on religion, or importunately excites the faithful party to sins of irreligion, lust, etc., or prevents the faithful party from fulfilling the precepts of religion, or refuses that the offspring be educated religiously. One departs morally: 2° who is unwilling to cohabit peacefully, for example if the infidel party treats the other spouse cruelly without just cause, or does not renounce concubinage, or - as it seems should be added - more often commits adultery, or by other continued vices reduces conjugal life to servitude (St. Alphonsus VI, 956).

The fact that the infidel spouse previously cohabited without insult to the Creator and peacefully does not prevent there being place for the privilege, if the infidel afterwards departs physically or morally; and this holds even if the faithful spouse after Baptism again consummated the marriage with the infidel party (canon 1124).

5. That the departure be established by interpellation, unless the Apostolic See has declared otherwise (canon 1121).

a) It is doubtful by what law interpellation is required;¹⁵ likewise whether it is necessary for the validity of the new marriage. Favoring the affirmative opinion are these words of canon 1121, § 1: "Before the converted spouse validly contracts..., he must... interpellate the non-baptized party."¹⁶ Furthermore, the interpellations must regularly be made after Baptism.¹⁷ But the infidel party must be asked: 1° whether he or she also wishes to be converted and receive Baptism; 2° whether at least he or she wishes to cohabit with the converted party peacefully, without insult to the Creator (canon 1121, § 1, 1° and 2°).

b) Interpellations should regularly be made, in at least summary and extrajudicial form, by authority of the Ordinary of the converted spouse. By that Ordinary there are also to be granted to the infidel spouse, if indeed he has requested them, delays for deliberating, yet with the warning that if the delays pass uselessly, the response will be presumed negative. Interpellations also made privately by the converted party himself are valid, indeed they are also licit, if the form prescribed above cannot be observed; nevertheless, in this case, for the external forum, these interpellations must be established by at least two witnesses or by another legitimate mode of proof (canon 1122). A single interpellation suffices, so that repetition is a matter of mere charity.¹⁸ Indeed interpellation need not even then be repeated when the infidel spouse previously lived peacefully with the faithful spouse, but afterwards departs.

c) Interpellation must be made unless the Apostolic See has declared otherwise. Besides this, Bishops, Vicars, and Prefects Apostolic are commonly granted the faculty of dispensing in certain circumstances.

Note. Those things which regard matrimony in the constitutions of Paul III Altitudo, June 1, 1537; of St. Pius V Romani Pontificis, August 2, 1571; and of Gregory XIII Populis, January 25, 1585, and which were written for particular places, are extended also to other regions in the same circumstances (canon 1125). It is said to other regions, that is, everywhere on earth, in the same circumstances. Now:

1° Paul III decrees "that polygamists who before conversion had several wives according to their customs, and do not remember which one they first took, once converted to the faith, may take one of them whom they wish, so that they may contract matrimony with her by words concerning the present, as is the custom; but those who do remember which one they first took, having dismissed the others, are to retain her. And we grant to them that those joined even in the third degree both of consanguinity and of affinity are not excluded from contracting marriages." The same holds concerning a woman who lived in polyandry.

2° Pius V declares that the same persons, even if they remember which was the first wife, may remain, the others having been dismissed, with the wife who was baptized with them. Nevertheless the first wife, if she is known to some, seems first to have to be interpellated as to whether she wishes to be converted. The text of Pius V does not indeed expressly declare this, but it is counseled by formula n. 23 of the Sacred Congregation of Propaganda Fide, where in the same case the faculty of dispensing is granted to Ordinaries under this condition, that the lawful wife of the convert has expressly refused conversion. It suffices, however, to interpellate the former wife, if she is known, as to whether she wishes to be converted; the other interpellation concerning peaceful cohabitation can be omitted.

3° Gregory XIII grants to local Ordinaries, pastors, and confessors of the Society of Jesus¹⁹ the faculty of dispensing with converted infidels, so that, the infidel spouse having been left, they may marry any one of the faithful, with the consent of the infidel in no way required or the response not waited for, "provided it is established, even summarily and extrajudicially, that the absent spouse, as was stated, cannot lawfully be admonished, or that, once admonished, he has not signified his will within the time fixed in that admonition." Many conclude from various responses of the Holy Office that these faculties can be extended to the case where it is established that interpellation will be useless.²⁰ The Supreme Pontiff adds: "and these marriages indeed, even if afterwards it should become known that the former infidel spouses could not declare their will because they were justly impeded, and had also been converted to the faith at the time of the second marriage contracted, nevertheless we decree that they must never be rescinded, but are valid and firm, and that the offspring to be received from them will be legitimate."

IV. Use of the privilege. 1. If the infidel who has been interpellated denies either conversion and due cohabitation, or due cohabitation alone and not conversion; likewise if he responds that he indeed wishes to cohabit peacefully, but is impeded from carrying out his will, the faithful spouse can pass to new nuptials (canon 1123), provided nevertheless that, if the infidel spouse admits conversion, the faithful spouse enters the nuptials before the Baptism of that spouse. Besides, for liceity it is required that the Ordinary or his delegate have declared that one can proceed to the use of the privilege.

2. If the infidel responds nothing, it must be seen whether the interpellation reached him and whether he could easily respond, so that departure can be gathered from the denied response. If the matter remains doubtful, and no fruit is hoped from a repeated interpellation, a dispensation from interpellation should be obtained.

3. The faithful spouse can enter new nuptials with a Catholic person only (cf. canons 1123, 1124). Unless a dispensation is obtained, marriage with a heretical person will be illicit; with an infidel, because of disparity of cult, it will be invalid. Moreover note:

a) If the infidel admits both conversion and due cohabitation, the faithful spouse, as is clear, is bound to cohabit with him.

b) If the infidel admits due cohabitation, but not conversion, the faithful spouse indeed cannot contract a new marriage; nevertheless, equally as the faithful spouse whose other party has fallen into heresy, he can institute divorce from bed and cohabitation, after a warning has first been given and after he has awaited conversion for a reasonable time. This is the doctrine and practice of the Church.²¹

4. By the new nuptials the prior marriage is dissolved, so that the infidel party after those nuptials have been contracted, not before, can validly contract a new marriage (canon 1126; St. Alphonsus VI, 957).²² That the prior marriage is dissolved through solemn profession which the faithful spouse may perhaps emit is denied rather commonly. Finally, the new nuptials are held by the Church as first nuptials, so that the faithful spouse is not judged a bigamist.

¹ 1 Corinthians 7:12-15.

² Collectanea, n. 1305 sq.

³ For example, in the Instruction to the Vicar Apostolic of Natal, July 11, 1866 (Collectanea, n. 1295).

⁴ Holy Office to the Bishop of Cochin, August 5, 1759, ad 4 (Collectanea, n. 421); in Nanking, March 5, 1852 (Collectanea, n. 1070).

⁵ Ami du Clerge, 1921, p. 69 sq. and p. 234 sq.

⁶ Cf. Gregorianum, 1923, p. 241 sq. and p. 329 sq.

⁷ 1 Corinthians 7:12-15.

⁸ August 5, 1759, ad 4 (Collectanea, n. 421); March 5, 1852 (Collectanea, n. 1070).

⁹ Sacred Congregation of Propaganda Fide, January 16, 1803 (Collectanea, n. 665).

¹⁰ C. Gaudemus, 8, De Divortiis.

¹¹ Holy Office, March 13, 1901; cf. Gregorianum, loc. cit.; Holy Office, March 8, 1911. Nevertheless the Supreme Pontiff can, the requisite conditions being fulfilled, by vicarious power dissolve the marriage previously entered (n. 722).

¹² Holy Office, August 5, 1759, ad 2 (Collectanea, n. 421); Sacred Congregation of Propaganda Fide, January 30, 1807 (Collectanea, n. 690).

¹³ July 8, 1891 (Collectanea, n. 1760).

¹⁴ Holy Office, December 14, 1848, ad 2 (Collectanea, n. 1036).

¹⁵ Holy Office, August 5, 1759 (Collectanea, n. 924); July 4, 1855 (Collectanea, n. 950).

¹⁶ Cf. Holy Office, September 16, 1824 (Collectanea, n. 784); June 12, 1850 (Collectanea, n. 1044).

¹⁷ Cf. Sacred Congregation of Propaganda Fide, January 17, 1836, ad 1 (Collectanea, n. 845).

¹⁸ Holy Office, April 13, 1859 (Collectanea, n. 1175); June 3, 1874 (Collectanea, n. 1415); Holy Office, June 12, 1850, ad 1 (Collectanea, n. 1044).

¹⁹ "With canon 1125 considered, the faculty now seems to be extended to all confessors" (Aertnys-Damen, II, 922, question 1°).

²⁰ Cf. Vermeersch, De casu Apostoli, n. 77.

²¹ Cf. Wernz-Vidal, n. 702.

²² Constitution of Benedict XIV Postremo mense, February 28, 1747.